Bombay High Court
Nitin Upadhayay And Anr vs State Of Maharashtra And Ors on 5 August, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere, Prithviraj K. Chavan
2024:BHC-AS:32447-DB
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Digitally
signed by
RUPALI
RUPALI RAJESH
RAJESH WAKODIKAR
WAKODIKAR Date:
2024.08.13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
18:58:53
+0530
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 13234 OF 2024
1. Nitin Upadhyay
2. Archna Nitin Upadhyay ...Petitioners
Versus
The State of Maharashtra ...Respondent
Mr. Aniket Nikam i/b Ms. Sadhna Singh for the Petitioner.
Mr. K.V.Saste, A.P.P for the Respondent-State.
CORAM : REVATI MOHITE DERE &
PRITHVIRAJ K. CHAVAN, JJ.
DATE : 5th AUGUST 2024
ORAL ORDER (PER REVATI MOHITE DERE, J.) :
1. Heard learned Counsel for the parties.
2. By this petition, the petitioners seek a direction to the
respondent No.1 - Oshiwara Police Station, Mumbai, to add Sections
of molestation i.e. 354 and criminal conspiracy i.e. 120B of the IPC to
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C.R.No. 543 of 2024, registered with the said Police Station. Transfer
of investigation of the said C.R. is also sought from the Oshiwara
Police Station to Crime Branch or State CID.
3. According to Mr. Nikam, learned Counsel for the
petitioners, the petitioner No.2 - Archna's modesty was outraged and
therefore, it was incumbent for the Police to register an offence under
Section 354 of the IPC. He also seeks addition of Section 120B of the
IPC.
4. Mr. Saste, learned Addl.P.P has produced the papers of
investigation. He submits that since no case is made out for addition
of Sections 354 and 120B of the IPC from the statements so recorded
by the Police i.e. of the petitioner No.2 and others, these sections have
not been added.
5. Perused the papers. It appears that an FIR was lodged at
the behest of the petitioner No.2 against the accused alleging offences
punishable under Sections 143, 147, 149, 452, 323, 504, 427 of the
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IPC. It is the petitioners' case, that the Police ought to have also
added Sections 354 and 120B of the IPC to the said FIR, in addition
to the aforesaid sections.
6. Learned Addl.P.P states that the Police have conducted
detailed investigation. Learned Addl.P.P Mr. Saste further submitted
that infact, the Injury Certificates of both the petitioners do not show
that either of them had sustained any injury.
7. Perused the papers, the petitioner No.2- Archna's first
statement, on the basis of which, FIR was registered, as well as, the
petitioner No.2's supplementary statement recorded by the Police,
post the filing of the aforesaid petition. In her first statement, the
petitioner No.2 - Archna (first informant) has narrated how the
incident took place and how certain male persons entered her house
and assaulted her husband. She has stated that the said persons were
assaulting her husband with fist blows; that the said persons also
assaulted her two young children with fist blows; and that thereafter,
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accused - Mayuresh and Abhijit pulled her hair and took her to
another room, after which, her husband escaped. It is also alleged that
the accused damaged her house and took away certain articles. The
said statement was recorded on 9 th June, 2024.
8. Thereafter, the Police recorded the supplementary
statement of the petitioner No.2 - Archna on 30 th July, 2024, post the
filing of the petition. The petitioner was specifically asked with
respect to her allegation of molestation. In the said statement dated
30th July, 2024, to the said question, the petitioner No.2 - Archna has
stated that accused - Mayuresh and Abhijit pulled her hair and took
her to another room and thereafter, assaulted her. She has stated that
in view of the same, Section 354 of the IPC be added. She has further
stated that, apart from the same, she did not wish to say anything
more with respect to outraging of her modesty.
9. Having perused both, the petitioner No.2 - Archna's
statements, we do not prima facie find that a case is made out for
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directing the Police to add Section 354 of the IPC to the aforesaid
C.R. Section 354 of the IPC (now repealed) reads thus;
"Assault or criminal force to woman with intent to outrage
her modesty.--Whoever assaults or uses criminal force to
any woman, intending to outrage or knowing it to be likely
that he will thereby outrage her modesty, shall be punished
with imprisonment of either description for a term which
may extend to two years, or with fine, or with both."
10. Thus, in order to attract Section 354 of the IPC, the
following ingredients would be necessary.
(i) The assault must be on a woman;
(ii) The accused must have used criminal force on a woman; and
(iii) The assault or criminal force must have been used with intent to
outrage or knowing that the accused thereby would outrage her
modesty.
11. The Apex Court, in the case of State of Punjab v/s Major
Singh1 observed in paras 4,5 and 16 as under :
"4] I would first observe that the offence does not, in my
opinion, depend on the reaction of the woman subjected to
1 AIR 1967 SC 63
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the assault or use of criminal force. The words used in the
section are that the act has to be
done "intending to outrage or knowing it to be likely that
he will thereby outrage her modesty". This intention or
knowledge is the ingredient of the offence and not the
woman's feelings. It would follow that if the intention or
knowledge was not proved, proof of the fact that the
woman felt that her modesty had been outraged would not
satisfy the necessary ingredient of the offence. Likewise, if
the intention or knowledge was proved, the fact that the
woman did not feel that her modesty had been outraged
would be irrelevant, for the necessary ingredient would
then have been proved. The sense of modesty in all women
is of course not the same-, it varies from woman to woman.
In many cases, the woman's sense of modesty would not be
known to others. If the test of the offence was the reaction
of the woman, then it would have to be proved that the
offender knew the standard of the modesty of the woman
concerned, as otherwise, it could not be proved that he had
intended to outrage "her" modesty or knew it to be likely
that his act would have that effect. This would be
impossible to prove in the large majority of cases. Hence, in
my opinion, the reaction of the woman would be
irrelevant.
5] Intention and knowledge are of course states of mind.
They are nonetheless facts which can be proved. They
cannot be proved by direct evidence. They have to be
inferred from the circumstances of each case. Such an
inference, one way or the other, can only be made if a
reasonable man would, on the facts of the case, make it.
The question in each case must, in my opinion, be: will a
reasonable man think that the act was done with the
intention of outraging the modesty of the woman or with
the knowledge that it was likely to do so? The test of the
outrage of modesty must, therefore, be whether a
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reasonable man will think that the act of the offender was
intended to or was known to be likely to outrage the
modesty of the woman. In considering the question, he
must imagine the woman to be a reasonable woman and
keep in view all circumstances concerning her, such as, her
station and way of life and the known notions of modesty
of such a woman. The expression "outrage her modesty"
must be read with the words "intending to or knowing it to
be likely that he will". So read, it would appear that though
the modesty to be considered is of the woman concerned,
the word "her" was not used to indicate her reaction. Read
all together, the words indicate an act done with the
intention or knowledge that it was likely to outrage the
woman's modesty, the emphasis being on the intention and
knowledge.
xxxxxxxx
16] I think that the essence of a woman's modesty is her
sex. The modesty of an adult female is writ large on her
body. Young or old, intelligent or imbecile, awake or
sleeping, the woman Possesses a modesty capable of being
outraged. Whoever uses criminal force to her with intent to
outrage her modesty commits an offence punishable under
s. 354. The culpable intention of the accused is the crux of
the matter. The reaction of the woman is very relevant, but
its absence is not always decisive, as, for example, when the
accused with a corrupt mind stealthily touches the flesh of
a sleeping woman. She may be an idiot, she may be under
the spell of anesthesia, she may be sleeping, she may be
unable to appreciate the significance of the act,
nevertheless, the offender is punishable under the section."
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12. In the case of Raju Pandurang Mahale v/s State of
Maharashtra & Anr.2, the Apex Court dealt with what is outraging of
modesty in para 12, 13, 14 and 15 as under :
"12] What constitutes an outrage to female modesty is
nowhere defined. The essence of a woman's modesty is her
sex. The culpable intention of the accused is the crux of the
matter. The reaction of the woman is very relevant, but its
absence is not always decisive. Modesty in this Section is an
attribute associated with female human beings as a class. It
is a virtue which attaches to a female owing to her sex. The
act of pulling a women, removing her saree, coupled with a
request for sexual intercourse, is such as would be an
outrage to the modesty of a woman; and knowledge, that
modesty is likely to be outraged, is sufficient to constitute
the offence without any deliberate intention having such
ourtrage alone for its object. As indicated above, the word
'modesty' is not defined in IPC. The shorter Oxford
Dictionary (Third Edn.) defines the word 'modesty' in
relation to woman as follows:
"Decorous in manner and conduct; not forward or lowe;
Shame-fast: Scrupulously chast."
13] Modesty is defined as the quality of being modest; and
in relation to woman, "womanly propriety of behaviour;
scrupluous chastity of thought, speech and conduct." It is
the reserve or sense of shame proceeding from instinctive
aversion to impure or coarse suggestions. As observed by
Justice Patterson in Rex v. James Llyod, (1876) 7 C & P
817. In order to find the accused guilty of an assault with
intent to commit a rape, court must be satisfied that the
accused, when he laid hold of the prosecutrix, not only
desired to gratify his passions upon her person but that he
2 AIR 2004 SC 1677
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intended to do so at all events, and notwithstanding any
resistance on her part. The point of distinction between an
offence of attempt to commit rape and to commit indecent
assault is that there should be some action on the part of
the accused which would show that he was just going to
have sexual connection with her.
14] Webster's Third New International Dictionary of the
English Language defines modesty as "freedom from
coarseness, indelicacy or indecency, a regard for propriety
in dress, speech or conduct". In the Oxford English
Dictionary (1933 Edn.), the meaning of the word 'modesty'
is given as "womanly propriety of behaviour: scrupulous
chastity of thought, speech and conduct (in man or
woman); reserve or sense of shame proceeding from
instinctive aversion to impure or
coarse suggestions."
15] In State of Punjab v. Major Singh, AIR (1967) SC 63 a
question arose whether a female child of seven and a half
months could be said to be possessed of 'modesty' which
could be outraged. In answering the above question the
majority view was that when any act done to or in the
presence of a woman is clearly suggestive of sex according
to the common notions of mankind that must fall within
the mischief of Section 354 IPC. Needless to say, the
"common notions of mankind" referred to have to be
gauged by contemporary societal standards. It was further
observed in the said case that the essence of a woman's
modesty is her sex and from her very birth she possess the
modesty which is the attribute of her sex. From the above
dictionary meaning of 'modesty' and the interpretation
given to that word by this Court in Major Singh's case
(supra) the ultimate test for ascertaining whether modesty
has been outraged is whether the action of the offender is
such as could be perceived as one which is capable of
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shocking the sense of decency of a woman. The above
position was noted in Rupan Deol Bajaj (Mrs.) and Anr. v.
Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194. When
the above test is applied in the present case, keeping in
view the total fact situation, the inevitable conclusion is
that the acts of accused appellant and the concrete role be
consistently played from the beginning proved combination
of persons and minds as well and as such amounted to
"outraging of her modesty" for it was an affront to the
normal sense of feminist decency. It is further to be noted
that Section 34 has been rightly pressed into service in the
case to fasten guilt on the accused- appellant, for the active
assistance he rendered and the role played by him, at all
times sharing the common intention with A-4 and A-2 as
well, till they completed effectively the crime of which the
others were also found guilty."
13. From the aforesaid judgments, it is evident that Section
354 of the Penal Code punishes indecent assault or use of criminal
force to a woman, as distinguished from assault simpliciter. The
essential ingredient to attract Section 354 is intent to outrage or the
knowledge that by the offending act, the accused would outrage the
modesty of a woman, whereas, the assault or use of criminal force to a
woman simpliciter unaccompanied by such a state of mind may not
fall within the four corners of the offence under Section 354 of the
Penal Code, though the accused may be liable for having committed
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some other offence.
14. Coming to the facts in the present case, it is alleged that
the accused were assaulting the petitioner No.1 i.e. the husband of the
petitioner No.2 by fist blows in his bedroom; that when the
petitioners' two children entered the room, they too were assaulted by
fist blows by the accused; and when the petitioner No.2 entered the
bedroom, the accused pulled the petitioner No.2 by her hair and took
her to another room and assaulted her with fist blows.
15. From the aforesaid facts, it, prima facie, appears that it was
a sudden quarrel and was not a premeditated act. Similarly, the act of
pulling petitioner No.2's hair and assaulting her with fist blows also
appears to be a sudden act and not a premeditated act. The first
informant i.e. petitioner No.2, in her statement has not alleged that
the act of pushing her was accompanied by any utterances or gestures
or indecent touch which would underscore sexual overtures. Neither
is there any allegation made by the petitioner No.2 (first informant)
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that the accused had an evil eye or had touched her inappropriately.
Thus, even if the prosecution case is taken as it stands, the existence of
mens rea, a prerequisite to attract Section 354 is amiss in the given
facts.
16. Of course, it is always open for the Trial Court to consider
the invocation of the same if a case is so made out by the petitioners
during trial. Similarly, no case is made out for adding Section 120B
of the IPC. Infact, we may note, that the learned Counsel did not
even argue with respect to applicability of Section 120B in the facts.
17. As far as the transfer of investigation is concerned, it
appears that the Police are investigating the case and have recorded
statements of several witnesses. The same is reflected from the file
produced before us. Considering the same, no case is made out to
transfer the investigation of this case, to the Crime Branch or to the
State CID.
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18. As far as, Police Protection is concerned, it is open for the
petitioners to file an appropriate application before the Competent
Authority for seeking the same. If such an application is filed seeking
Police Protection, the Competent Authority is to decide the same, as
expeditiously as possible, in accordance with law.
19. Petition is accordingly dismissed with the aforesaid
observations and disposed of as such, on the aforesaid terms.
20. All concerned to act on the authenticated copy of this
order.
PRITHVIRAJ K. CHAVAN, J. REVATI MOHITE DERE, J.
